In the first two months of the year, Lieven J has delivered two judgments that are closely linked and need to be considered together. They cover the recent trend we see of an increase in applications for cognitive assessments and the use of intermediaries. Danish Ameen analyses.
The case of West Northamptonshire Council v The Mother (Psychological Assessment) [2024] EWHC 395 (Fam) involved a child born prematurely in December 2023. An application under Part IV was issued before he was due to be discharged. The first interim care plan was for removal, but this evolved to a mother and baby placement by the time of the hearing on 23rd January 2024.
On 22nd January 2024, an application was made on behalf of the mother for a cognitive assessment. Of note, there was nothing in the local authority initial evidence that suggested the mother suffered from any cognitive impairment, no reference to her having special educational needs, or any other markers that would evidence that the mother had additional needs.
The application was listed before Lieven J. Minutes before the hearing was to commence, those representing the mother sought permission to withdraw the application. The application to withdraw was not granted, and Lieven J delivered a judgement on the application.
In her judgment, Lieven J noted that there was minimal evidence in support of the application that showed that it was necessary; she observed that the late application to withdraw indicated that the application should never have been made.
Of course, the application for cognitive assessment was refused because the test for necessity was not met. More significantly, however, Lieven J’s judgment reminds us how important it is to be aware of the Advocates Gateway and it is only in circumstances where the approach in the Advocates Gateway is insufficient that an application for cognitive assessment will become necessary.
The following serves as a useful summary:
“It will often be the case that parents may struggle to absorb information, to understand the proceedings and to concentrate through meetings and hearings. However, the solution to this problem is not, in the majority of cases, to have cognitive assessments and appoint intermediaries. It is for all the professionals involved, including lawyers and judges, to bear closely in mind the need to use simple language, avoid jargon, and where appropriate check that a litigant has understood what is being said.” §22
There are, however, three observations I would wish to make on this judgment. First, without a cognitive assessment, it may prove very difficult to obtain funding for an advocate. Second, a skilled professional should be able to identify that a parent has some difficulties that require more time for things to be explained to them, but it may prove difficult to ascertain the extent of those difficulties without the relevant expert evidence. Neither of those two points were raised before Mrs Justice Lieven. That leads me to the third most important point: the need to evidence how the test for necessity is met. Ultimately, this case was about an application for a cognitive assessment after the mother’s team adopted a ‘belt and braces’ approach, with the ambition that it would help identify what support the mother may need to help her care for the child in the future. They wouldn’t be the first nor the last.
In this case, the ParentAssess framework was being considered. Too often, we have worked on the basis that because a modified social work assessment is being considered, a cognitive assessment should be sought to inform the specific practical arrangements to be taken. That is not necessarily the case.
What is needed is to refocus our minds to providing the evidence to justify the need for a cognitive assessment. It is crucial to provide evidence of discussions and/or events that show a parent demonstrating difficulties that cannot be overcome by a careful use of language or some modest adjustments in how professionals work with the parent. We should expect courts to be more vigilant when considering applications for cognitive assessment in the future.
The next stage is to consider the need for an intermediary. Lieven J heard the case of West Northamptonshire Council v KA (Intermediaries)[2024] EWHC 79, in which judgment was given on 19th January 2024. The case featured significant delay for a variety of reasons. The matter was listed for a final hearing on 6th November 2023 for five days, when the deaf intermediary appointed did not attend court because of a tragic family incident.
The question of wasted costs did arise; the court deciding not to order wasted costs against the intermediary under the circumstances. However, the court took the opportunity to offer guidance on intermediaries. It was noted that FPR r3A.1 defines an intermediary as follows:
“… [I]ntermediary means a person whose function is to –
(a) communicate questions put to a witness or party;
(b) communicate to any person asking such questions the answers given by the witness or party in reply to them; and
(c) explain such questions or answers so far as is necessary to enable them to be understood by the witness or party or by the person asking such questions…”
In the absence of any further guidance on the point within the family justice system, the court referred to the jurisprudence in the criminal justice system and extracted the following principles:
a. It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [2020] EWCA Crim 117 [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.
b. The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];
c. Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];
d. In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37];
e. The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];
f. If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];
g. At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.
Lieven J reminds us that the judge and lawyers must be mindful to adapt their language and take suitable breaks. It is also for lawyers to explain the process to their client. Ultimately, it is a matter for the judge as to whether an intermediary is justified for the whole trial.
Lieven J stressed that in most cases, she would take the view that it was the job of the mother’s lawyers to explain to her what was happening during breaks. As it happened, in her judgment, Lieven J was satisfied that it was necessary for the mother to have a deaf intermediary throughout the final hearing because of her profound difficulties and how onerous (and potentially impossible) it would be for the mother’s legal team to provide the explanations of what was happening in court.
Practitioners should expect more questions from the court about the need for an intermediary to be appointed and present throughout the final hearing. Each case will turn on its merits, but particular regard should be placed on the issues that fall to be determined at the final hearing, the case the client wants to advance at the final hearing, and what adjustments can be made on how the hearing proceeds and how the client is supported by their legal team (and others).
Both of these cases should remind practitioners of the Case Management Guidance in Public Law Cases issued in March 2022. We all have a duty to ‘make every hearing count’ and to ‘make cases smaller’. We have seen an increase in applications for cognitive assessments and a growing reliance on intermediaries – the recent trend cannot and should not continue. At each stage, we need a clear evidential basis to establish the test of necessity is met.
Link to judgment in West Northamptonshire Council v The Mother (Psychological Assessment) [2024] EWHC 395 (Fam): https://caselaw.nationalarchives.gov.uk/ewhc/fam/2024/395
Link to judgment in West Northamptonshire Council v KA (Intermediaries)[2024] EWHC 79: https://www.bailii.org/ew/cases/EWHC/Fam/2024/79.html
For further information on Danish Ameen and the services he provides please contact Chambers Director James Parks or Family Senior Clerk Camille Scott on email: family@18sjs.com or call: 0161 278 1800.